For the People Theatres of N.Y., Inc. v. City of N.Y.
| Decision Date | 06 June 2017 |
| Parties | FOR the PEOPLE THEATRES OF N.Y., INC., Doing Business as Fair Theatre, Plaintiff, and JGJ Merchandise Corp., Doing Business as Vishans Video, Also Known as Mixed Emotions, Respondent v. CITY OF NEW YORK et al., Appellants. Ten's Cabaret, Inc., Formerly Known as Stringfellow's of New York, Ltd., et al., Respondents, v. City of New York et al., Appellants. |
| Court | New York Court of Appeals Court of Appeals |
29 N.Y.3d 340
79 N.E.3d 461
57 N.Y.S.3d 69
FOR the PEOPLE THEATRES OF N.Y., INC., Doing Business as Fair Theatre, Plaintiff, and JGJ Merchandise Corp., Doing Business as Vishans Video, Also Known as Mixed Emotions, Respondent
v.
CITY OF NEW YORK et al., Appellants.
Ten's Cabaret, Inc., Formerly Known as Stringfellow's of New York, Ltd., et al., Respondents,
v.
City of New York et al., Appellants.
Court of Appeals of New York.
June 6, 2017.
Zachary W. Carter, Corporation Counsel, New York City (Ingrid R. Gustafson, Richard Dearing and Elizabeth S. Natrella of counsel), for appellants.
Fahringer & Dubno, New York City (Erica T. Dubno of counsel), for JGJ Merchandise Corp., respondent.
Zane and Rudofsky, New York City (Edward S. Rudofsky of counsel), and Mehler & Buscemi, New York City (Martin P. Mehler of counsel), for Ten's Cabaret, Inc. and another, respondents.
Howard E. Greenberg, Esq., P.C., Smithtown (Howard E. Greenberg of counsel), and Jennifer M. Kinsley, Chase College of Law, Northern Kentucky University, Highland Heights, Kentucky, for First Amendment Lawyers Association, amicus curiae.
OPINION OF THE COURT
FAHEY, J.
Through a long, complicated, and confusing history, the litigants have struggled over the application of zoning regulations as they apply to New York City's adult entertainment industry. We hold that the City has met its burden of demonstrating that the establishments affected by its 2001 zoning amendments retained a predominant focus on sexually explicit materials or activities. It follows, under our 2005 decision in this case, that the amendments do not violate plaintiffs' First Amendment rights.
I.
In 1994, the New York City Department of City Planning (DCP) completed a study of sexually focused businesses, namely "adult video and bookstores, adult live or movie theaters, and topless or nude bars," and identified significant negative secondary impacts, including increased crime, diminished property values, reduced shopping and commercial activity, and a perceived decline in residents' quality of life. After
public hearings, the City's Planning Commission issued a report, adopting the findings and conclusions of the study and noting that the businesses with adverse secondary impacts
had "a predominant, on-going focus on sexually explicit materials or activities."
The next year, after further public hearings, the New York City Council added zoning regulations barring adult establishments from residential zones and most commercial and manufacturing zones, and mandating that, where permitted, adult businesses had to be at least 500 feet from houses of worship, schools, day care centers, and other adult businesses.
The 1995 zoning ordinance defined an "adult establishment" as a commercial establishment a "substantial portion" of which was "an adult book store, adult eating or drinking establishment, adult theater, or other adult commercial establishment, or any combination thereof." In turn, an "adult book store" (a term meant to embrace stores selling or renting sexually explicit video material, as well as books and magazines) was defined as having a "substantial portion" of its "stock-in-trade" in, among other things, printed matter or video representations depicting "specified sexual activities" or "specified anatomical areas," as defined in the regulations. An "adult eating or drinking establishment" was defined as an eating or drinking establishment that excludes minors and "regularly features" live performances or films emphasizing "specified sexual activities" or "specified anatomical areas," or where the employees regularly expose "specified anatomical areas" to patrons as part of their employment.
Certain adult establishments, including Stringfellow's of New York, Ltd. (the predecessor in interest of plaintiff Ten's Cabaret, Inc.), challenged the 1995 ordinance, as violating their rights of free speech protected by the First Amendment of the Federal Constitution and article I, § 8 of the State Constitution. This Court held that the ordinance was content-neutral because it was not "purposefully directed at controlling the content of the message conveyed through adult businesses," but instead "was aimed at the negative secondary effects caused by adult uses, a legitimate governmental purpose" ( Stringfellow's of N.Y. v. City of New York, 91 N.Y.2d 382, 397, 399, 671 N.Y.S.2d 406, 694 N.E.2d 407 [1998] ). We further ruled that the ordinance was not broader than necessary, since it "protect[ed] only those communities and community institutions that are most vulnerable to ... adverse impacts" ( id. at 400, 671 N.Y.S.2d 406, 694 N.E.2d 407 ), and that reasonable
alternative avenues of communication were assured, because the zoning "allow[ed] adult businesses to remain in districts that permit a wide mix of commercial, retail, entertainment and manufacturing uses" and, in almost every instance, were "within a 10–minute walk from a subway line or a major bus route" ( id. at 403, 671 N.Y.S.2d 406, 694 N.E.2d 407 ). The 1995 ordinance was "not constitutionally objectionable" ( id. at 406, 671 N.Y.S.2d 406, 694 N.E.2d 407 ) under the standards of Renton v. Playtime Theatres, Inc. , 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986) and Matter of Town of Islip v. Caviglia , 73 N.Y.2d 544, 542 N.Y.S.2d 139, 540 N.E.2d 215 (1989). Although we did not use the term "intermediate scrutiny" in Stringfellow's, it is clear that we applied this standard insofar as we determined whether the ordinance was narrowly tailored to serve a substantial governmental interest and allowed for reasonable alternative channels of communication.
Meanwhile, the City's Department of Buildings and its Planning Commission, in an effort to give clarity to the concept of an establishment's "substantial portion," determined in a 1998 Operations Policy and Procedure Notice that any commercial
establishment with at least 40% of its customer-accessible floor/cellar area or stock-in-trade used for adult purposes qualified as an adult establishment. Thus emerged the so-called 60/40 test, which was applied to identify adult bookstores and adult eating or drinking establishments alike.
As the City began to enforce the 1995 ordinance, it concluded that adult establishments were achieving technical compliance with the 60/40 test, but without altering their predominant focus on sexually explicit activities or materials. As the City saw it, the 60/40 businesses were engaged in a "sham." In one case, the City sought to shut down a store that complied with the test, insofar as just 24% of its stock consisted of adult videos, but where the nonadult videos were offered only for sale, not for rent, did not sell profitably, had been supplemented very modestly, and were located in a back room. This Court ruled in City of New York v. Les Hommes , 94 N.Y.2d 267, 702 N.Y.S.2d 576, 724 N.E.2d 368 (1999) that the zoning resolutions must be enforced as written, without considering such factors as whether the nonadult stock was unprofitable or located in a remote part of the premises.
DCP then applied to the Planning Commission for amendments to the ordinance. The Planning Commission held further public hearings and issued a report endorsing the proposed amendments. In 2001, the City Council approved significant changes to the zoning regulations, greatly reducing the significance of the 60/40 test.
With respect to "adult eating or drinking establishments," the 2001 amendments removed "substantial portion" from the definition, providing instead that a venue is covered if it regularly features live performances characterized by an emphasis on certain "specified anatomical areas" or "specified sexual activities" in any portion of the establishment, regardless of whether it limits those performances to less than 40% of its floor area. In other words, a club featuring topless or nude dancers qualifies as an "adult eating or drinking establishment" no matter the proportion of its space devoted to adult entertainment.
With regard to adult bookstores, the 2001 amendments formally kept the 60/40 test, with the added provision that if a store passes the test, but meets at least one of eight criteria, then the store's nonadult material will not be considered stock-in-trade for the purpose of the "substantial portion" analysis. For example, if a store has peep booths, i.e. enclosures "where adult movies or live performances are available for viewing by customers," then it qualifies as an adult bookstore, no matter how many nonadult video discs and magazines it stocks.
The 2001 amendments are the subject of the actions that we now consider, for the second time, today.
II....
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for the People Theatres of N.Y., Inc. v. City of N.Y.
...29 N.Y.3d 34079 N.E.3d 46157 N.Y.S.3d 69FOR the PEOPLE THEATRES OF N.Y., INC., Doing Business as Fair Theatre, Plaintiff, and JGJ Merchandise Corp., Doing Business as Vishans Video, Also Known as Mixed Emotions, Respondentv.CITY OF NEW YORK et al., Appellants.Ten's Cabaret, Inc., Formerly K......